Heit v. Heit

In a matrimonial action in which the parties were divorced by a judgment dated July 30, 1976, the plaintiff former wife appeals from so much of an order of the Supreme Court, Kings County (Imperato, J.H.O.), dated September 27, 1990, as granted the defendant former husband’s motion to vacate (1) his default in opposing a motion by the plaintiff former wife, and (2) a judgment of the same court, dated February 23, 1990, entered upon his default. Ordered that the order is modified, as a matter of discretion in the interest of justice, by deleting from the tenth decretal paragraph thereof the words "the sum of $1,250” and substituting therefore the words "the sum of $2,500”, as so modified, the order is affirmed insofar as appealed from, without costs or disbursements. Considering the absence of prejudice to the plaintiff, the meritorious nature of the defense, and the public policy in favor of resolving cases on the merits, we find, as a matter of discretion, in the interest of justice, that the Supreme Court properly excused the default (see, I.J. Handa, P. C. v Imperato, 159 AD2d 484). However, in light of the defendant’s former attorney’s conduct, the imposition of a monetary sanction in the amount of $2,500 is warranted. Rosenblatt, J. P., Ritter, Copertino and Pizzuto, JJ., concur.